States shouldn't deny equal treatment for Indian kids

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"For too long, a lot of our kids have been lost in one system or another, whether it be this system or through residential schools," Montana State Rep. Jonathan Windy Boy told his colleagues last week. "It's time to wake up and kind of move forward."

Rep. Windy Boy is leading the charge for Montana to pass a state version of the Indian Child Welfare Act, before the U.S. Supreme Court strikes down as unconstitutional the federal version of that law, which many believe it may do this spring.

ICWA was passed in 1978 in an effort to remedy instances in which Indian children were removed from their homes and placed with white families as a result of poverty or bias. The law gives tribal governments a say over where children with Indian blood are placed if there's ever a custody dispute.

But the law has actually meant that tribal governments can block a child's placement for foster care or adoption with a non-Indian family — even if no Indian family is available. And while its advocates, including many state and federal officials, believe that ICWA protects Indian families from being separated, in fact it subjects these children to higher levels of maltreatment before they can be removed from abusive homes and longer stays in foster care.

Last year, the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court's judgment that ICWA violates the equal-protection clause of U.S. Constitution's 14th Amendment. If the Supreme Court agrees, no state law that is similarly constructed should be allowed to stand either.

Nevertheless, in preparation for the high court's decision, several states are passing their own versions of ICWA. North Dakota is considering such a law, and given that not a single person testified against the legislation, it seems likely to pass. South Dakota considered a version but voted it down over fears of passing a law that could be declared invalid. Utah is debating legislation, as is Wyoming. And last year New Mexico's governor signed one.

Minnesota introduced one this month (HF 1071).

Some advocates are comparing this strategy to states' passing laws to keep abortion legal in the wake of the Dobbs decision overturning Roe v. Wade last year. Indeed, the Supreme Court expressly left it up to the states to decide the scope of abortion rights. But the controversies are not the same.

Unlike the situation after the reversal of Roe, if the Supreme Court found that the federal ICWA violates equal protection, the 14th Amendment would still protect all Americans from unequal protection — whether a law was enacted at the federal or state level.

Striking down a previously recognized federal constitutional right to abortion does not limit what a state can do to limit or protect abortion rights. But if the court said that ICWA is unconstitutional on equal protection grounds, all comparable state laws would be rendered unconstitutional as well.

No one knows how the Supreme Court will decide, but the oral arguments suggested that at least five members are skeptical of the law. Justice Brett Kavanaugh questioned the reach of congressional power to pass otherwise discriminatory laws in favor of Indians based on their separate "political status" — an argument made by tribal advocates.

This question got the heart of this case. If ICWA violates the 14th Amendment's guarantee of equal protection of the laws, which expressly applies to the states, no amount of grandstanding by state officials can change that.

Thanks to ICWA, Native children are forced into systemic inequality: Because of ICWA's provisions designed to ensure Native children are only adopted by Indian families, it is much harder for them to find permanent homes. In North Dakota, for example, more than 40% of the children waiting for adoption are of Indian descent, despite the fact that Indians make up less than 5% of the population.

However the Supreme Court case turns out, it is a mystery why ICWA continues to be viewed as the "gold standard" solution states should emulate to prevent the future disproportionate placement of Indian children. No data support its success.

The law ensures that Indian kids stay in abusive and neglectful homes longer than children of other races. For other American children to be permanently separated from their parents, the state must find "clear and convincing evidence" to proceed. But with Native kids, ICWA says the state must prove its case beyond a reasonable doubt, a higher standard, and that it must do so with expert testimony approved by the tribe.

Ensuring the equal protection of children of all races from abuse and neglect requires that our most vulnerable kids — no matter their ancestry — are not forced to live in a state of limbo with the government as their perpetual custodian. And no state should be able to say otherwise. After more than 40 years of this unequal treatment, it is indeed time to "wake up and move forward."

Mark Fiddler, of Minneapolis, is an enrolled member of the Turtle Mountain Band of Chippewa, and co-counsel for the plaintiff adoptive parents in Brackeen v. Haaland, the case now before the U.S. Supreme Court. Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute and author of "No Way to Treat a Child."